Lawyers weekly report..
Hells Angels Australia has been locked in a legal fight with the Melbourne-based online marketplace for years, with the outlaw motorcycle gang most recently losing $78,250 in damages on appeal.
The club was originally awarded damages when Federal Court’s Justice Andrew Greenwood found Redbubble had sold products with designs that were either substantially identical or deceptively similar to registered trademarks comprising of the words “Hells Angels”.
Justice Greenwood ordered Redbubble to cough up $8,250 in nominal damages and $70,000 in additional damages, but a Full Court replaced it with an award of $100 in nominal damages on appeal.
The Full Court found Redbubble – as a site that partly relies on third parties uploading images – did not have the technology to detect whether an image was deceptively similar to a trademark.
“Thus an award of additional damages for the purpose of which was to persuade Redbubble to use computer systems to check all images prior to their upload to the website for deceptively similar [material] would, on the evidence, presently by quixotic,” the court said.
The $100 in nominal damages included $20 for each infringement.
Separately, Redbubble sought to rely on a settlement agreement, but this was rejected by Justice Margaret Jagot. An appeal of this decision was knocked back the same day the Greentree appeal was accepted.
In the Federal Court’s Justice Kylie Downes costs decision, she found because Hells Angels did succeed in establishing infringements on its intellectual property rights, “Redbubble should pay the costs of Hells Angels Australia of the primary proceedings”.
